Citation Nr: 0006885 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 95-33 333 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for the residuals of a right hemilaminectomy at L3-4 based on surgery at a VA medical center in September 1984. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from July 1966 to April 1969 and from February 1977 to July 1979. In June 1991 the RO denied entitlement to compensation benefits under the provisions of 38 U.S.C.§ 351 (now 38 U.S.C.A. § 1151) for back disability. In November 1991, in another case, the United States Court of Veterans' Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter Court) invalidated 38 C.F.R.§ 3.358 (c)(3) (1991), part of the regulation applicable to cases involving claims under 38 U.S.C.A. § 1151. Garner v. Derwinski, 1 Vet. App. 584 (1991). In March 1992 the veteran filed a notice of disagreement in regard to the June 1991 rating decision denying benefits under 38 U.S.C.A. § 1151. In April 1992, the RO informed the veteran of the VA wide stay of consideration of claims affected by the Gardner decision. The decision of the Court in Gardner was subsequently affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F. 3rd 1456 (1993) and then by the United States Supreme Court in Brown v. Gardner, 115 S. Ct 552 (1994). Thereafter the Secretary of the VA sought an opinion from the Attorney General of the United States as to the full extent to which benefits were authorized under the Supreme Court's decision. On March 16, 1995, amended regulations were published deleting the fault or accident requirement of 38 C.F.R.§ 3.358 (c)(3), in order to conform the regulation to the decision of the United States Supreme Court. This matter now comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating action by the RO which denied entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the residuals of a right hemilaminectomy at L3-4 under the amended regulations. The Board remanded this case to the RO for further development in July 1997. That development having been completed the issue listed on the title page of this decision is before the Board for further appellate consideration at this time. A September 1999 statement from the veteran indicates that he is seeking service connection for his low back disorder as secondary to his service-connected post-traumatic stress disorder. This issue has not been adjudicated by the RO and is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's lumbar spine disability preexisted VA surgery performed in September 1984. 2. The VA performed right hemilaminectomy at L3-4 in September 1984 did not result in an increase in severity of the veteran's pre-existing lumbar spine disorder. CONCLUSION OF LAW The requirements for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the residuals of a right hemilaminectomy at L3-4 based on VA surgery in September 1984 have not been met. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION When this case was remanded to the RO in July 1997 the Board, in effect, found the veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for back disability to be well grounded. The claim was considered to be well grounded because the evidence of record at that time included an opinion by a physician indicating that in September 1987 the veteran was experiencing post operative arachnoiditis, and further because the operative report at the time of the September 1984 surgery indicated a nick of the posterior longitudinal ligament and a 1 centimeter tear on the lateral side of the thecal sac. As such, the evidence of record at the time of the Board remand raised a significant question about an increase in severity of the preexisting low back disorder, as well as the possibility of events having occurred during surgery which were not certain to occur or intended to occur. The development required by the Board's July 1997 remand has now been accomplished and no further development is required to fulfill the VA's duty to assist the veteran in the development of this claim mandated in 38 U.S.C.A. § 5107(a). I. Factual Background. In a May 1984 statement, a VA physician stated that the veteran suffered from a severe back problem that caused episodic incapacitation to the point where he had temporary paralysis of his legs. On VA medical examination in July 1984, the veteran gave a history of injuring his back in a 1974 motorcycle accident. He also said that he had been unable to walk two months prior to the examination because of back pain. He said that he had then received chiropractic treatment of his back and was now okay again. At the examination he complained of constant spasms in his back and low back pain that could be precipitated by sneezing. X-rays revealed right convex dorsal scoliosis and compensatory left convex lumbar scoliosis, with minimal degenerative changes. Evaluation revealed voluntary spasm at 10 degrees of forward flexion and beyond 20 degrees of straight leg raising, bilaterally. Reflexes were extremely hyperactive at the ankles and knees. No Babinski and no paresthesia to pinprick were noted. The diagnosis was moderate scoliosis of the dorsal vertebrae and mild scoliosis of the lumbar vertebrae with minimal degenerative changes of the lumbar vertebrae at the L2, L3 level. The veteran was hospitalized by the VA in late September 1984 with a 7-year history of back pain radiating down the right posterior thigh to the ankle. He also complained of low back spasms, weakness associated with pain in the right leg, and decreased sensation in the right leg. A lumbar myelogram revealed facet hypertrophy at the L3-4 level, more marked on the right, with evidence of ligamentous laxity producing a lateral indentation on the thecal sac at this level. There was no evidence of frank disc herniation, but a CT scan showed soft tissue density centrally and on the right anterolateral aspect of the thecal sac at the L3-4 level extending upward. This was consistent with a herniated disc. The veteran executed a consent form on September 25, 1984, in which it was noted, inter alia, that he had not been given any guarantees as to the result of the procedure he was to undergo and that he understood the risks involved. The following day he underwent a right hemilaminectomy and removal of herniated disc. The operative report noted that during the procedure a dural tear of approximately 1-cm in length occurred on the lateral side of the thecal sac. This was identified and closed with suturing. During identification of the L3-4 disc space, a small nick was made in the posterior longitudinal ligament. At the time of discharge from the hospital, it was felt that leg strength was within normal limits within the confines of the incision pain, and a slightly decreased ankle jerk was noted, which had been appreciated earlier by the attending surgeon. In a March 1985 statement a VA physician noted that the veteran was continuing to have back pain following his September 1984 surgery on his lumbar spine. On a June 1985 VA rheumatology consultation, it was noted that the veteran had undergone back surgery in September 1984 and recently had increased problems with pain and spasm. It was said that the veteran had difficulty sitting and standing. When ambulating he had a list to the right. Motion was said to bring on pain. He was said to have a deficit in range of motion in all spheres. During VA outpatient treatment in April 1986 the veteran was said to continue to have much pain in the lower back. A scan performed two weeks earlier was said to reveal scar tissue. Latter in April 1986 it was said that the veteran had had a three-month flare of low back pain with marked spasm and list to the right by mid morning. During a VA hospitalization for the treatment of post- traumatic stress disorder in May 1986 the veteran was noted to have severe problems with his back which caused him to be periodically unable to straighten up for weeks at a time. It was reported that he had been walking around with a severe limp and leaning sideways for approximately three months. During VA outpatient treatment in June 1986 the veteran said that his leg pain had subsided since his September 1984 surgery, but he continued to have 5 to 6 episodes of sudden right sided low back pain a year. It was noted that these episodes often occurred when stress problems were acute. The assessment was chronic lumbosacral instability. When seen in August 1986 the veteran said that he had had 2 episodes of severe low back pain since his June visit. Each of these episodes was said to have forced him to remain in bed for 3 days. The veteran complained of pain in the right iliolumbar angle. There was no leg pain. It was said that X-rays, a myelogram, and CT scans had shown a defect at L3-4. Private clinical records show outpatient treatment in September 1987 for the veteran's low back pain. It was reported that the veteran had begun to have low back pain in the mid 1970s that was not the result of any particular trauma. It was noted that he had had VA performed excision of a lumbar disc which was apparently unsuccessful. A few weeks prior to current treatment the veteran began to have severe low back pain that prevented him from walking or lying down. Examination revealed severe lumbar spine muscle spasms with a well-healed incisional scar over the mid lumbar area. There was a list to the right and the veteran could hardly stand while using a cane. Knee and ankle reflexes were symmetric and active and there was no significant muscular atrophy or weakness. There was diffuse sensory loss involving the L4-5 and S1 nerve roots on the right leg and foot. It was the doctor's opinion that the veteran's current pain was mainly due to postoperative arachnoiditis. The veteran underwent a VA orthopedic examination in March 1995. He complained of episodic low back pain with radiation down his right leg that was eased by bed rest for a few days. It was said that he spent a lot of time in bed due to back pain. On examination the veteran was noted to have a normal gait. There were no trigger areas of tenderness. He had 10 degrees of forward flexion, tilt to the right and left was 15 degrees and extension was 0 degrees. Reflexes were all present with the right ankle and knee jerks being 1+ compared to 2+ on the left. Straight leg raising was positive at 30 degrees on the right and at 60 degrees on the left. No hypesthesia was present. X-rays disclosed moderately severe osteoarthritic changes of L3, 4, and 5 with decreased intervertebral disc space between L3-4, L4-5 and L5-S1. The diagnoses were chronic lumbosacral strain with sciatic nerve irritation on the right and status post laminectomy with diskectomy of the lumbar spine in 1984. The examining physician commented that the treatment in 1984 had been appropriate and necessary. On VA examination in January 1998 the veteran was noted to have undergone a lumbar laminectomy at L3-L4 for a herniated disc in September 1984. This was said to have left him with residual back pain requiring narcotic medication for alleviation. On evaluation the veteran had 5+ strength throughout. He had a mild scoliosis with a surgical incision in the L2-L5 region that was well healed. There were no abnormal lumps or fibrotic tissue observed. No signs of erythema or infection were noted. The doctor said that it was entirely possible that the veteran still had pain from his back surgery. The doctor further stated that the veteran did, under subjective criteria, have indications of some nerve losses per his lumbar surgery but he demonstrated minimal nerve loss in the L4-L5 region which consisted of some sensory deficits. The doctor also said that there was no muscle atrophy. The veteran could ambulate with a normal gait, showing 5+ strength in the area. In an April 1998 statement a VA physician indicated that she had reviewed the clinical records of the veteran's September 1984 surgery. The doctor noted that a dural tear of the thecal sac occurred during the procedure that was closed by sutures and no spinal fluid came from this tear after closure. It was also noted that a small nick in the posterior longitudinal ligament was made from which disc material herniated prior to the excision of the disc. The doctor noted that the veteran continued to suffer low back pain after surgery and he was claiming errors in the procedure. These errors included the tearing of the dura and the nicking of the posterior longitudinal ligament. It was also said that the veteran was claiming that he was not informed that the surgery could make his pain worse, but the doctor noted that an informed consent form was of record that showed that he was informed of the possible risks and consequences of the surgery. After VA examination in June 1998 the examining physician noted that the veteran had a history of low back pain since 1984. He was said to complain of continuing low back pain that limited his overall ability to ambulate at times, and on occasion caused him to spend as much as a week of every month in bed. He was noted to have marked limitation of motion in the lumbar spine, but his reflexes were well preserved on objective testing. His strength was also well preserved. Sensory loss conformed to a dermatonal area in general. It was said that the veteran did not want to pursue any further neuro imaging in looking for an osteosurgical cure for his pain. On further VA examination in April 1999 the examiner stated that he was not a neurosurgeon and was not qualified to answer questions regarding the details and techniques of specific neurosurgery. The veteran was noted to have explained in detail how he continued to have severe chronic back pain since undergoing an L3-L4 laminectomy by the VA in 1984. The doctor noted that there was a question as to whether some of the ongoing back symptoms with intermittent episodes of severe muscle spasms were the consequences of the surgery or a consequence of the veteran's underlying back disorder. He also said, essentially, that the small nick made in the posterior longitudinal ligament is a routine and necessary part of the lumbar disc surgery, since this was the only way to access the disc. It was also noted that a small tear in the dura of the thecal sac occurred during the September 1984 surgery. This was said to be a common occurrence during such surgery, and the important thing was to have a good surgical repair of the tear to insure that the central spinal fluid does not leak and that pseudo meningocele does not subsequently develop. After reviewing the chart, the physician said that there was no central spinal fluid leak or pseudo meningocele development after the surgery. The physician also noted that a private physician had earlier stated that the veteran likely has arachnoiditis. It was said that it did not appear that the veteran had had recent imaging such as an MRI and that it would be speculative at best to suggest that the veteran had arachnoiditis without such a study. The doctor further stated that such a study could show the presence of arachnoiditis, but such a study could not rule out the presence of arachnoiditis. In June 1999 the veteran underwent an MRI study of his lumbar spine performed by the VA. Following the study, the impressions were no positive evidence of arachnoiditis and no evidence of disc herniation at any of the studied levels. II. Legal Analysis. The Board notes that since the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A.§ 1151 for residuals of lumbar spine surgery was filed prior to October 1, 1997, negligence is not for consideration in this claim. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of VA hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death was service connected. The regulation implementing that statute, 38 C.F.R.§ 3.358, provides, in pertinent part, that compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or intended to result from the examination or medical or surgical treatment administered. 38 C.F.R.§ 3.358(c)(3). The Board also notes that 38 C.F.R.§ 3.358, provides, in pertinent part, that in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition that the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization etc., was authorized. In determining whether additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincident therewith. 38 C.F.R. § 3.358 (b), (c)(1). Review of the evidence of record in this case clearly shows that the veteran had severe lumbar spine disability prior to the right hemilaminectomy at L3-4 performed by the VA in September 1984. He has contended that the September 1984 surgery performed on his lumbar spine resulted in a worsening of his low back pain. In particular, it has been asserted that the veteran was not told the risks and consequences of the surgery prior to the procedure; that a nick in a posterior longitudinal ligament and a tear in the dura of the thecal sac caused increased symptomatology; and a private physician had indicated that he developed arachnoiditis due to the September 1984 surgery, and that such arachnoiditis resulted in increased low back pain. First, the record contains an informed consent form dated on September 25, 1984, and signed by the veteran, which shows that he was informed of the potential consequences and risks of the September 1984 lumbar spine surgery prior to the performance of the procedure. There is therefore no merit to his assertion that he was not informed of the potential consequences and risks of his September 1984 VA performed hemilaminectomy at L3-4. In regard to the nicking of his longitudinal ligament during the September 1994 lumbar surgery, the evidence of record shows that this is an essential part of the surgical procedure since such a nick must be made to gain surgical access to the site of the diseased disc. Therefore, this nick is a consequence of the hemilaminectomy at L3-4 that is among those that are certain to result from, or intended to result from the surgical treatment administered. Under the provision of 38 C.F.R.§ 3.358(c)(3), benefits may not be paid based upon such an intended consequence of the surgery. It is true, as asserted, that a small tear in the dura of the thecal sac occurred during the course of the September 1984 VA performed hemilaminectomy of L3-4. While this was not certain to have occur or intended to occur during such surgery, the record indicates that the tear was promptly and appropriately repaired without any leakage of spinal fluid and without subsequent infection or other pathology as a result of the tear. The record does not show that any additional disability to the veteran's lumbar spine resulted from this incident. The Board also notes that a private physician opined in September 1987 that the veteran's back pain at that time was likely due to postoperative arachnoiditis. While that may have been the case in September 1987, the evidence of record does not demonstrate the current existence of arachnoiditis in the lumbar spine. A recent MRI study failed to reveal any findings indicative of this pathology. Since that is the case, compensation benefits under the provisions of 38 U.S.C.A. § 1151 cannot be based on a post operative arachnoiditis. The condition is not currently shown to exist. In view of the above, the Board concludes that the veteran's current low back disorder represents a continuance or natural progress of the lumbar disc disease which the VA surgery of September 1984 was performed to correct. The veteran's continuing low back disability is coincident to this surgery and does not represent an aggravation of this disorder by the September 1984 VA performed hemilaminectomy of L3-4. ORDER Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the residuals of a right hemilaminectomy at L3-4 based on surgery at a VA medical center in September 1984 is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals